While I marvel at the ability of regulatory committees to achieve anything of value, The Bar Standards Board, enthused, possibly, by that great festival of corporatism The Olympic games, have gone for Gold with their proposals to introduce a Bar Course Aptitude Test (BCAT).Prologue

1. In the beginning Mammon created the law and the Bar

2. And The Bar was without form, and void; and darkness was upon the face of the deep. And the Spirit of mammon moved upon the face of the waters.

3. And Mammon said, Let there be a Bar Standards Board to regulate all the barristers: and there was The Bar Standards Board.

4. And Mammon saw the light, that it was good: and Mammon divided the light from the darkness.

5. And Mammon called the light barristers, and the darkness he called those wishing to be barristers. And the evening and the morning were the first day.

6. And Mammon said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters.

7. And Mammon made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament with a Bar Course Aptitude test: and it was so.

I have no idea how The Bar Standards Board cooked up their idea of a Bar Course Aptitude test – but it amuses me to think that it may not have been far from the imagined description above – judging by the plans in place thus far.

A number of points come to mind. I address these seriatim:

1. There is no room at the Inn. There are too many Bar students pushing at the door and frightening the existing members worried about being handed a SAGA holiday brochure by the senior clerk in their early fifties if the thrusting young are not held at bay.

2. Competition Law, unintended consequences or even fairly straightforward out of the box thinking not being on the agenda, presumably: The BSB has gone for an aptitude test which has, Neil Rose of Legal Futuresreports, been “set at a level that aims to weed out the bottom 10% of candidates. The Damoclean sword has been replaced by a bacon slicer.

3. It would appear that a law degree is not a sufficient test of ‘aptitude’ to be a barrister. Curiously, The BSB has decided, in its wisdom, not to test English as part of this aptitude for the time being. One can only surmise that they are rather keen to ensure that the many students from overseas (who return to their own countries and are not a burden to our sceptred isle or the angst of the practising Bar worried about the horde at the gates) continue to come from overseas, pay the fees to them, the Inns and law schools, and then return to their own countries? I would not wish it to be thought that I suffer from gout to come to such a surmise.

The alternative, possibly rather too radical, proposition of making the Bar Professional Training Course more difficult to pass – which would probably achieve the same reduction of numbers objective, give all students a fair chance to take the exam and benefit the general public onto which the thrusting young barrister is unleashed – does not appear to have survived the bacon slicer thinking behind the BCAT creation process.

Interestingly, The Bar Standards Board appears to have invented a good old fashioned bogeyman to head criticism off at the pass with this statement – taken from Neil Rose’s report:

Some 64% pass all modules of the BPTC at the first attempt. The application says that as well as showing that “students are admitted who are not capable of passing the course after the one year of academic study for which it is designed”, their presence “immensely diminishes the quality of the learning experience for the class as a whole”.

At the risk of being burned at the stake for apostasy by the éminence grises of The BSB – I would imagine that students with poor English skills being allowed onto the course, may well have a more ‘diminishing the quality of the learning experience for the good guys effect’? But be that as it may. Aptitude in English is not a required aptitude for practice at The Bar for the purposes of the bacon slicing designed to repel boarders at the gates of heaven.

I fear that Chris Kenny may have been reading too many editions of Private Eye with this wonderful piece of BBC Burtspeak taken from the Legal Futures article. I sympathise.

LSB chief executive Chris Kenny said the very fact that the test has not operated in practice, other than in limited pilots, means it is “impossible to verify in absolute terms” what impact the test will have on issues such as diversity, and the number or competence of barristers.

“This uncertainly has a material impact on our ability to reach definitive conclusions, both about the impact in relation to individual regulatory objectives and better regulation duties, and our assessment of the broader impact on the overall public interest,” he said.

But it isn’t all bad news: Neil Rose reports BSB chair Baroness Deech saying that far from breaking new ground, the BSB was late to the idea of aptitude testing. “Medics have been doing this for years without any adverse impact on race and class,” she said. Overseas legal bodies also used it, she added.” So to borrow from the BBC’s excellent Twenty Twelve …”That’s all good”.

And…and at least fee income is being considered – a priority in these dark days..

The BCAT will be in place from this September ahead of applications for the 2013 Bar professional training course opening in November. The application fee for the test will be about £67. All students will be told their scores, but the information will not be passed to course providers.

I am, it has to be said, a bit baffled by the kafkaesque last sentence – “All students will be told their scores, but the information will not be passed to course providers.” I can only assume that those who failed will be ‘disappeared’ or be given the keys to the library where a revolver and a whisky await, provided at no extra charge. ?

Perhaps I shall telephone the BSB to find out how cunning that latter part of the plan is and what the sentence means in practice.

On that note – given that it is unlikely my colleagues from the world of academe and practice will be able to pull any more stunts over the Long Vacation requiring my analysis, I bid you leave.

If you are short of material to read over the Long Vacation – may I suggest, without irony, my greatest work (infra) which my brother Charon QC describes thus “If you thought that Shades of Grey was amazing…this mind ripper will alter your mindset forever.”

I am not quite sure what he meant. When I first asked him to review my book he replied with the famous aphorism of Sir Maurice Bowra when asked to review a book – “Be sure, I shall lose no time in doing so.”

My brother has ‘issues’ with the legal establishment. I have found it better to humour him than engage with him in reasoned rational argument – for therein lies the sort of ‘mania’ experienced by some legal commentators on twitter when they engage the libertarians, trolls and shield munchers.

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Faith in the test is somewhat hampered by the fact that one of the answers in the first sample question is wrong: inference 4 is not definitely false, on the basis of the wording of the facts as stated at least…

“And Lo”… the éminence grises of The BSB pronounced the creation of the Bar Course Aptitude Test (BCAT).”

The bottleneck, the wringer, on the number of practitioners entering the profession, is the number of pupillages offered. The bar, collectively, chooses to what degree it will expand or contract. For the moment, the BSB stats indicate the profession is contracting (and pupillages fell off a cliff in 2003, coinciding with the introduction of mandatory funding.. it has never recovered to the 700 – 800 a year of the early 2000s, has not exceeded 550 since 2003, and is at the lowest level since the late 1980s).

“set at a level that aims to weed out the bottom 10% of candidates”

I had been lead to believe that the failure rate in the pilot was far, far higher than that. I can’t recall if what I was told was commercial-in-confidence, so I won’t elaborate, but I do believe it will be more rigorous than the quote above would imply.

“3. It would appear that a law degree is not a sufficient test of ‘aptitude’ to be a barrister.”

Frankly, it’s not. Despite the huffing and puffing of senior members of the bar, many of the students coming through the system are better prepared to practice as a barrister after the BPTC, and barristers should be supporting the current settlement in terms of legal education if they value the bar as a distinctive profession. A 1st in History from Oxbridge, 9 months studying law with the GDL and 6 months making coffee and dogsbodying for your pupilmaster in your first six is not adequate training for you to practice as a legal professional.

You could get to the end of an LLB without ever having seen the White Book. I cannot see how it would be considered appropriate or responsible to release a bar pupil on the paying public if they’re almost entirely unfamiliar with civil and criminal procedure, with redoc, or an opportunity to hone their advocacy skills or be inculcated with the professional ethics and peculiar shibboleths of the bar.

When you look at the quality of the cohort of the London providers (City, BPP, College of Law and Kaplan) it’s reasonably high. I pulled some stats at the provider where I’m an employee, and I found that approximately 85% of our offerees had 1sts or 2:1s. That’s very close to the figure you see in the pupillage stats released by the BSB (those OLPAS applicants who successfully obtained pupillage).

In my experience, the people who say it is useless are largely in an echo chamber (heads of chambers, senior juniors who don’t want to admit that it’s possible they were not adequately trained), pupils and NQs who are going to agree with whatever comes out of the mouths of their senior colleagues.

Frankly, the poor quality of advocacy and questionable, the dismissive and insular attitude, in large parts of the bar was absolutely disgraceful for years. There are certainly issues with the number of law graduates and BPTC students (and the tendency of some providers to accept cohorts that are majority international students), but every student I speak to is well aware that it is an enormous gamble (that they have a 1 in 4 chance of getting a pupillage, all things being equal), and yet they choose to do it anyway. You’re never going to match the number of aspirants to the profession with the number of pupillages and tenancies. They can also get LPC exemptions now and most BPTC graduates end up as solicitors. All’s well etc

The bar itself has pronounced judgement on the BPTC, in a favourable manner, in the way in which pupillages obtained prior to the BVC/BPTC as an overall proportion have plummeted; clearly they see some value in ascertaining what mark a student attains in the BPTC.

“Curiously, The BSB has decided, in its wisdom, not to test English as part of this aptitude for the time being.of their senior colleagues.”

Neither here nor there. Students are required to do IELTS and attain a 7.5 in all areas to go onto the BPTC (at least at City, Kaplan and BPP).

There are certainly improvements that could be made academically (though Kaplan and BPP run a very rigorous programme)

and some providers need their allocation / student cap trimmed back, but overall the system works and the BPTC is a valuable stepping stone to pupillage insofar as it requires aspirants to the bar to engage in an additional year of legal training (crucial for many who are only GDL graduates), and to actually practice the particular skills required at the bar.

I think if you were to go to one of the advocacy small group sessions and see what it is bar students do, you would be better able to understand what students get from it.

Just a final point; I think that in spite of the high tuition fees, the BPTC is actually a social equalizer insofar as in the last year for which we have stats from the BSB about those who successfully obtained pupillage, there were a surprising number from the Open University (six, if I recall correctly). Also, about 8% of the total number of pupils attained 2:2s.

The BPTC requires the bar not just to be lazy and fall back on the Oxbridge preference, but to give other people a look in to the profession and to give those who might not otherwise have an opportunity to demonstrate their suitability and enthusiasm for the bar.

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